COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71091 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : BENNIE SOWELL : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: APRIL 17, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-332505. JUDGMENT: AFFIRMED IN PART, REVERSED IN PART AND REMANDED FOR RESENTENCING. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor John Gallagher, Esq. Assistant County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Donald Green, Esq. Assistant Public Defender 100 Lakeside Place 1200 W. Third Street Cleveland, OH 44113 -2- DAVID T. MATIA, P.J.: Bennie Sowell, defendant-appellant, appeals from the judgment of the Cuyahoga County Court of Common Pleas, Criminal Division, Case No. CR-332505, in which the trial court found defendant-appellant guilty of the offense of aggravated assault with a firearm specification, a lesser included offense of felonious assault, the originally indicted offense. Defendant-appellant assigns two errors for this court's review. I. THE FACTS This case involves a physical conflict between two friends, the victim, Antonio Clark and Bennie Sowell, defendant-appellant, which occurred on October 11, 1995. As a result of the confrontation, Clark suffered a bullet wound to his right ankle. On January 16, 1996, the Cuyahoga County Grand Jury returned a single count indictment charging defendant-appellant with the felonious assault of Antonio Clark in violation of R.C. 2903.11 The indictment also contained a firearm specification. On June 24, 1996, a bench trial commenced in the Cuyahoga County Court of Common Pleas, defendant-appellant having effectively waived his right to a jury trial that same day. The state's case consisted of the testimony of three witnesses: Antonio Clark, the victim; Narvis Carmella Hines, the victim's fiance; and East Cleveland Police Officer Louis Paroska, the first officer on the scene after the altercation. The first witness for the state, Antonio Clark, testified that he and defendant-appellant had known each other four or five years -3- and were, in fact, best friends. On various occasions, defendant- appellant sometimes stayed at Clark's residence overnight. On October 10, 1995, Clark became aware that he was missing two gold rings, two gold chains and $200.00 in cash from his home. Neighbors informed Clark that they had seen defendant-appellant break into Clark's home. Clark allegedly called the police about the break-in but they refused to come because there were no eyewitnesses. During the next two days, Clark approached defendant-appellant on three separate occasions regarding the alleged burglary. Initially, Clark confronted defendant-appellant on Allendale Street in East Cleveland, Ohio. Clark stated that defendant-appellant was with Anthony Bell at the time and Bell produced a handgun when he saw Clark. Bell and defendant-appellant then left the scene in an automobile. The second encounter also occurred on October 10, 1995 near 1840 Charles Street in East Cleveland, Ohio. Clark was driving when he saw defendant-appellant walking down the street. On this occasion, Bell ran out of an adjacent gas station holding a gun. Clark drove away and went home. On October 11, 1995, Clark maintained that he was driving with his fiance, Narvis Carmella Hines in her 1989 Ford Probe. Sometime between 2:15 p.m. and 2:45 p.m., Clark saw defendant-appellant at the intersection of Charles Street and Euclid Avenue in East Cleveland, Ohio. According to Clark, he parked the car and approached defendant-appellant and asked why Bell had pulled a gun -4- on him the day before. Clark then frisked defendant-appellant and removed a .380 automatic pistol from his person and placed it somewhere on the Ford Probe. A fight ensued, during which Clark and defendant-appellant moved towards the rear hatchback of the car. After a prolonged struggle, defendant-appellant allegedly broke loose, ran "over to the guy Derick" who had retrieved defendant-appellant's handgun, loaded the weapon and began firing. Clark testified that defendant-appellant fired approximately fifteen times, hitting Clark in the right ankle on the fifth shot. Clark stated that he was shot while running from the scene. Clark also maintained that, after defendant-appellant shot him, defendant-appellant put the gun to Ms. Hines' head and pulled the trigger three times, but the weapon apparently jammed. At that point, defendant-appellant allegedly began shooting at the Ford Probe shattering the rear window and putting bullet holes in various locations in the car. Clark then ran to Arthur's Shell Gas Station where the police and an ambulance were called. Clark was taken to Meridia Huron Hospital where his leg was treated for the gunshot wound. The second witness for the state, Narvis Carmella Hines, testified that she lives with Antonio Clark and owns the 1989 Ford Probe involved in the incident. Ms. Hines' testimony largely coincided with the testimony of Antonio Clark. Ms. Hines denied any involvement in the altercation, denied being armed during the fight and denied having any weapons in her car at the time in -5- question. Ms. Hines admitted that she had a prior conviction in 1994 for aggravated assault. The final witness for the state was Officer Louis Paroska of the East Cleveland Police Department. Officer Paroska testified that he arrived at the scene approximately one minute after the gunshots were reported. Officer Paroska discovered Clark at the Shell station suffering from an apparent gunshot wound to the right ankle. At the scene of the shooting, the police found the 1989 Ford Probe with bullet holes and broken glass in the left rear driver's window. The police checked the immediate area for evidence recovering two shell casings adjacent to the Ford Probe. Officer Paroska stated that, had two clips of ammunition been fired as alleged by Clark and Hines, there would have been approximately fifteen to seventeen shell casings on the ground. At the close of the state's case, the trial court overruled defendant-appellant's Crim.R. 29 motion for judgment of acquittal. The defense case consisted of the testimony of two alleged eyewitnesses, Paul Brown, Paul McPherson, and defendant-appellant. The first witness for the defense was Paul Brown who testified that he, Clark and defendant-appellant had been friends for an extended period of time. Brown testified that he had been on the scene talking with defendant-appellant and others when Clark and Hines drove up in Hines' Ford Probe and parked. Clark exited the car and approached defendant-appellant saying "can I get mine ***" and then threw a -6- punch at defendant-appellant. A fight began and the two combatants fell against the car. Brown maintained that, at this point, Ms. Hines produced a four-way tire iron from her vehicle and began hitting defendant-appellant in the lower back. Paul McPherson allegedly grabbed the tire iron and threw it in the grass near the car and a third person named Lamont pulled Hines away from defendant-appellant. Brown testified further that Clark, who was described as bigger and taller than defendant-appellant, then pinned defendant- appellant down in the hatchback of the Ford Probe. While on top of defendant-appellant, Clark grabbed a "big" tech nine gun from the car and put it to defendant-appellant's head. However, another bystander known only as "Tone" grabbed the tech nine from Clark. Brown then heard Clark ask Ms. Hines to get his .357 handgun but she did not. Brown stated that, at this point, defendant-appellant managed to push Clark off his body, jumped out of the hatchback, reached back and pulled out a gun. Defendant-appellant cocked the gun and fired it three times at the retreating Clark, hitting Clark in the right ankle with the third shot. Brown did not see defendant-appellant approach Ms. Hines in any manner nor did Brown see defendant-appellant shoot at Ms. Hines' automobile. The second witness for the defense, Paul McPherson, testified that he too was a friend of both Antonio Clark and defendant- appellant. McPherson stated that he witnessed the entire -7- altercation between the two. McPherson's account did not differ in any significant way from the testimony of Paul Brown with one exception. McPherson testified that he observed Clark use "something shiny" to cut defendant-appellant while the two men were wrestling in the hatchback. Neither Paul Brown or Paul McPherson witnessed defendant-appellant carrying a gun on October 11, 1995. The third and final witness for the defense was defendant- appellant who maintained that he only shot the weapon in the direction of Antonio Clark in self-defense. Defendant-appellant testified that on October 11, 1995, Clark approached him as he was standing near the intersection of Charles Street and Euclid Avenue in East Cleveland. Clark mentioned stolen property and punched defendant-appellant in the face twice. At this time, Ms. Hines allegedly hit the defendant-appellant in the lower back with the four-way tire iron alluded to by both Paul Brown and Paul McPherson. Defendant-appellant testified further that, as the fight progressed, Clark was able to pin him down in the hatchback area of the Ford Probe. Clark then allegedly grabbed a "tech nine" from the trunk but the gun was quickly taken from Clark by a man named Tone. Defendant-appellant maintained that Clark then produced a switch blade and used it to cut defendant-appellant's right wrist. As clark was pinning defendant-appellant down, defendant-appellant felt that he was laying on top of an object which turned out to be a .380 handgun. Defendant-appellant then pushed Clark off, reached back in the trunk and grabbed the .380 handgun. Defendant- -8- appellant stated that he only fired three shots, the first two into the ground, the third striking Clark in the right ankle. Defendant-appellant then threw the weapon back into the car and left the scene. Defendant-appellant denied firing the weapon at the Ford Probe. The defense then rested and renewed its Crim.R. 29 motion for judgment of acquittal. The trial court overruled the motion. Immediately after the conclusion of closing arguments, the trial court issued its verdict stating: We have varying accounts of all the facts. But one thing is clear in everybody's testimony and that's that the defendant shot a weapon and that he had time to think about it and I think clearly he is culpable. So my feeling is that the state has met all the elements but it's not a felonious assault because I believe that the defendant was under the influence of sudden passion which made him think he needed to resort to force. It does not rise to self defense, however, because he wasn't in danger. The fact is I think that everybody's account of this has been tailored to meet what they thought they could prove. The fact of the matter is the only think in common is that the defendant got out of this car, the man was standing there and he fired. That was not called for. I could understand how he did it but it was not called for and it was in the heat of passion. Therefore, I find the defendant guilty of the offense of aggravated assault and I also find that as to the gun specification, he did in fact have a gun on his person and under his control. Therefore, with this finding of guilty then the Court will remand the defendant and -9- I will set the sentencing for 9:00 on Friday morning. (Tr. 182-83.) Defendant-appellant was sentenced by the trial court on June 28, 1996 to an indefinite term of incarceration of one and one- half to five years on the aggravated assault along with an additional three year mandatory sentence for the firearm specification to be served consecutively. The sentence was journalized by the trial court on July 12, 1996. On August 8, 1996, defendant-appellant filed a timely notice of appeal from the judgment of the trial court. II. FIRST ASSIGNMENT OF ERROR Bennie Sowell's, defendant-appellant's, first assignment of error states: THE TRIAL COURT ERRONEOUSLY SENTENCED APPELLANT TO A MANDATORY THREE-YEAR TERM ON A FIREARM SPECIFICATION AND TO AN INDEFINITE SENTENCE WHEN APPELLANT WAS INELIGIBLE FOR AN INDEFINITE SENTENCE. A. THE ISSUE RAISED: ILLEGAL SENTENCE. Defendant-appellant argues, through his initial assignment of error, that the trial court's sentence was improper. Specifically, defendant-appellant maintains that he was incorrectly sentenced to an indefinite term of incarceration on the fourth degree felony conviction of aggravated assault due to the fact that the underlying indictment did not contain a formal violence specification. Defendant-appellant argues that, absent a formal specification of physical harm in the underlying -10- indictment, the only sentence which could be imposed was a definite sentence of six, twelve or eighteen months. Defendant-appellant argues further that, since he should have been sentenced to a definite term of incarceration on the underlying felony, the trial court was precluded from imposing the three year actual term of incarceration on the gun specification pursuant to former R.C. 2929.71(A) which states in pertinent part: (A) The court shall impose a term of actual incarceration of three years in addition to imposing a life sentence pursuant to section 2907.02, 2907.12, or 2929.02 of the Revised Code or an indefinite term of imprisonment pursuant to section 2929.11 of the Revised Code, if all of the following apply: (1) The offender is convicted of, or pleads guilty to any felony other than a violation of section 2923.12 of the Revised Code. (2) The offender is also convicted of, or pleads guilty to, a specification charging him with having a firearm on or about his person or under his control while committing the felony. * * * The three-year term of actual incarceration imposed pursuant to this section shall be served consecutively with and prior to, the life sentence or the indefinite term of imprisonment. -11- B. STANDARD OF REVIEW. Former R.C. 2929.11(G), which was in effect at the time of defendant-appellant's sentencing, provided that no person shall be sentenced to an indefinite term of imprisonment for a felony of the third or fourth degree unless the indictment charging the defendant contains a specification as set forth in R.C. 2941.143. R.C. 2941.143, also in effect at the time of defendant- appellant's sentencing, provides that the indictment must specify, as applicable in this case, that the offender caused physical harm to any person. The statute explains in great detail where the specification shall appear in the indictment, what the specification must contain and the necessary structure 1 of the specification. In State v. Ellington (1989), 65 Ohio App.3d 473, 475, this court, in dealing with the same issue, stated: 1 R.C. 2941.143 provides in pertinent part: Such a specification shall be stated at the end of the body of the indictment, count, or information and shall be in substantially the following form: "Specification (or, Specification to the First Count). The grand jurors (or insert the person's or the prosecuting attorney's name when appropriate) further find and specify that (set forth the allegation either that, during the commission of the offense, the offender caused physical harm to any person, or made an actual threat of physical harm to any person with a deadly weapon, or that the offender has previously been convicted of or pleaded guilty to an offense of violence)." -12- It is well established that a defendant may not be sentenced to a three-year term of incarceration under R.C. 2929.71(A) if the defendant is sentenced to a definite term of imprisonment for the underlying felony. State v. Hall (1984), 21 Ohio App.3d 52, 21 OBR 55, 486 N.E.2d 189; State v. Maynard (Oct. 17, 19850, Cuyahoga App. No. 49486, unreported, 1985 WL 8137; State v. Catchings (Dec. 24, 1987), Cuyahoga App. No. 53089, unreported, 1987 WL 30378. In State v. Witwer (1992), 64 Ohio St.3d 421, syllabus, the Ohio Supreme Court recognized the necessity of a R.C. 2941.143 specification in the indictment in order to impose an indefinite term of incarceration for a fourth degree felony conviction: A court of common pleas may impose the indefinite term of incarceration prescribed by R.C. 2929.11(B)(7) where an accused has been convicted of a fourth degree felony the commission of which caused physical harm to any person, provided the indictment which initiated the criminal proceedings contains the specification contained in R.C. 2941.143 and the accused was convicted thereon. C. DEFENDANT-APPELLANT'S SENTENCE WAS IMPROPER. In the case sub judice, the underlying indictment states: The Jurors of the Grand Jury of the State of Ohio, within and for the body of the County aforesaid, on their oaths, IN THE NAME AND BY THE AUTHORITY OF THE STATE OF OHIO, Do find and present, that the above named Defendant(s), on or about the date of the offense set forth above, in the County of Cuyahoga, unlawfully did knowingly cause or attempt to cause physical harm to Antonio Clark by means of a deadly weapon or dangerous ordnance, to-wit: handgun, as defined in Section 2923.11 of the Revised Code. SPECIFICATION ONE: (Firearm) -13- The Grand Jurors further find and specify that the offender had a firearm on or about his person or under his control while committing the offense charged in this count of the indictment, ***. Clearly, the indictment did not contain a violence specification as set forth in R.C. 2941.143 since the charged offense of felonious assault expressly incorporated the physical born language of R.C. 2903.11(A)(1). When the trial court found defendant-appellant guilty of the lesser included offense of aggravated assault, the physical harm language that would have been redundant in the indictment, became necessary if the court sought to impose an indefinite sentence. Since the indictment did not contain the necessary specification, the indefinite sentence of one and one-half to five years was improper. State v. Parnell (Oct. 26, 1989), Cuyahoga App. No. 56166, unreported. Therefore, since defendant-appellant could only be properly sentenced to a definite term of incarceration, it is apparent that the three-year actual term of incarceration for the conviction on the underlying gun specification was also improper. R.C. 2929.71 limits the imposition of a three-year actual term of incarceration to cases in which a life sentence or an indefinite sentence is imposed. State v. Hall, supra; State v. Maynard, supra. Accordingly, the three-year actual term is inapplicable to this case. Defendant-appellant's first assignment of error is well taken. -14- III. SECOND ASSIGNMENT OF ERROR Bennie Sowell's, defendant-appellant's, second assignment of error states: MR. SOWELL WAS DENIED HIS FREEDOM WITHOUT DUE PROCESS OF LAW BY A CONVICTION WHICH WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. A. THE ISSUE RAISED: MANIFEST WEIGHT OF THE EVIDENCE. Defendant-appellant argues, through his second assignment of error, that his conviction was against the manifest weight of the evidence. Specifically, defendant-appellant maintains that the state's eyewitness testimony was unreliable, that no reliable testimony was introduced to demonstrate that defendant-appellant had a gun "on his person and under his control" beyond the time necessary for self-defense, and the weight of the evidence demonstrated that defendant-appellant was forced to use a weapon in self-defense and to frighten Antonio Clark from the scene. Defendant-appellant's second assignment of error is not well taken. B. STANDARD OF REVIEW FOR MANIFEST WEIGHT OF THE EVIDENCE. In State v. Martin (1983), 20 Ohio App.3d 172, the court set forth the test to be utilized when addressing the issue of manifest weight of the evidence. The Martin court stated: There being sufficient evidence to support the conviction as a matter of law, we next consider the claim that the judgment was against the manifest weight of the evidence. Here the test is much broader. The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in -15- the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. *** See Tibbs v. Florida (1982), 457 U.S. 31, 38, 42. State v. Martin, supra, at 175. Moreover, the weight of the evidence and credibility of the witnesses are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. The power to reverse a judgment of conviction as against the manifest weight must be exercised with caution and in only the rare case in which the evidence weighs heavily against the conviction. State v. Martin, supra. In determining whether a judgment of conviction is against the manifest weight of the evidence, this court in State v. Wilson (June 9, 1994), Cuyahoga App. Nos. 64442/64443, unreported, adopted the guidelines set forth in State v. Mattison (1985), 23 Ohio App.3d 10, syllabus. These factors, which this court noted are in no way exhaustive, include: 1) Knowledge that even a reviewing court is not required to accept the incredible as true; 2) Whether evidence is uncontradicted; 3) Whether a witness was impeached; 4) Attention to what was not proved; 5) The certainty of the evidence; 6) The reliability of the evidence; 7) The extent to which a witness may have a personal interest to advance or defend their testimony; and -16- 8) The extent to which the evidence is vague, uncertain, conflicting or fragmentary. A reviewing court will not reverse a verdict where the trier of fact could reasonably conclude from substantial evidence that the state has proved the offense beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169. C. DEFENDANT-APPELLANT'S CONVICTION WAS NOT AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. In this case, evidence was presented by way of the eyewitness testimony of Antonio Clark, the victim, and Narvis Carmella Hines, the victim's fiance, in an attempt to establish the elements of the offense of aggravated assault with a firearm specification. A review of the testimony of both Clark and Hines demonstrates that each witness provided a consistent account of the events leading up to the physical altercation and eventual shooting. This testimony, along with the defense testimony of Paul Brown and Paul McPherson, reveals a fairly accurate version of the underlying events. As the trial court correctly stated in announcing its verdict: We have varying accounts of all the facts. But one thing is clear in everybody's testimony and that's that the defendant shot a weapon and that he had time to think about it and I think clearly he is culpable. (Tr. 182.) Defendant-appellant maintained throughout the trial court proceedings and on appeal that, although he did fire the weapon that injured Antonio Clark, he did so only in self-defense. To -17- establish self-defense, the following elements must be demonstrated: 1) the defendant was not at fault in creating the situation giving rise to the occurrence; 2) the defendant had an honest belief that he was in imminent danger of death or great bodily harm, and that his only means of escape from such danger was in the use of such force; and 3) the defendant must not have violated any duty to retreat or avoid the danger. See State v. Robbins (1979), 58 Ohio St.2d 74; State v. Cuttiford (1994), 93 Ohio App.3d 546, 555. Considering the fact that defendant-appellant fired the weapon at Antonio Clark as Clark was backing away from the altercation and, by all accounts, unarmed, the claim of self-defense is inapplicable to the case at bar. Since the weight to be given the evidence and the credibility of the witnesses are primarily matters for the fact finder to determine and that it is not the function of the appellate court to substitute its judgment for that of the fact-finder, State v. Grant (1993), 67 Ohio St.3d 415; State v. D'Ambrosio (1993), 67 Ohio St.3d 185, this court cannot now say that the trial court's verdict in this case is against the manifest weight of the evidence. Defendant-appellant's second assignment of error is not well taken. Judgment of the trial court is affirmed in part, reversed in part and remanded for resentencing. -18- This cause is affirmed in part, reversed in part and remanded for resentencing. It is, therefore, considered that said appellant recover of said appellee his costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DYKE, J. and PRYATEL, J., CONCUR. (Judge August Pryatel, Retired Judge of the Eighth Appellate District, sitting by assignment.) DAVID T. MATIA PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .